The future of confession law: Toward rules for the Voluntariness test

Michigan Law Review

Volumn 114, Issue 1, 2015, Pages 1-56

  Primus, Eve Brensike ^a  

^a UNIVERSITY OF MICHIGAN LAW SCHOOL   (United States)

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EID: 84942929626     PISSN: 00262234     EISSN: None     Source Type: Journal    
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References (484)

1. Miranda v. Arizona, 384 U.S. 436 (1966).
2. Massiah v. United States, 377 U.S. 201 (1964).
3. Brandon L. Garrett, The Substance of False Confessions, 62 Stan. L. Rev. 1051, 1094 (2010)
4. Richard A. Leo, Police Interrogation and American Justice 277 (2008) (“The voluntariness test . . . invites inconsistent application.”)
5. Welsh S. White, Miranda’s Waning Protections 39 (2001) (describing the voluntariness test as “constantly shifting and evolving”)
6. Yale Kamisar, On the Fortieth Anniversary of the Miranda Case: Why We Needed It, How We Got It—And What Happened to It, 5 Ohio St. J. Crim. L. 163, 168 (2007) (describing the test as “too amorphous, too perplexing, too subjective and too time-consuming to administer effectively”).
7. Culombe v. Connecticut, 367 U.S. 568, 605 (1961) (plurality opinion) (describing voluntariness as “an amphibian”)
8. Blackburn v. Alabama, 361 U.S. 199, 207 (1960) (noting that voluntariness is animated by a “complex of values”).
9. Mark A. Godsey, Rethinking the Involuntary Confession Rule: Toward a Workable Test for Identifying Compelled Self-Incrimination, 93 Calif. L. Rev. 465, 470 (2005) (“[A] finding that a confession was made involuntarily [is] very rare in practice.”)
10. Yale Kamisar, A Dissent from the Miranda Dissents: Some Comments on the “New” Fifth Amendment and the Old “Voluntariness” Test, 65 Mich. L. Rev. 59, 62 (1966) (“A victim of objectionable interrogation practices could only satisfy [the voluntariness test] . . . in a utopian judicial world.”).
11. Charles D. Weisselberg, Mourning Miranda, 96 Calif. L. Rev. 1519 (2008)
12. Jonathan Witmer-Rich, Interrogation and the Roberts Court, 63 Fla. L. Rev. 1189 (2011)
13. Yale Kamisar, The Rise, Decline, and Fall (?) of Miranda, 87 Wash. L. Rev. 965, 1026–27 (2012) (expressing doubt that the Supreme Court would want to reshape the voluntariness test if Miranda were overruled).
14. Maryland v. Shatzer, 559 U.S. 98, 108 (2010) (describing confessions as an “unmitigated good” and as “essential to society’s compelling interest in finding, convicting, and punishing those who violate the law” (quoting McNeil v. Wisconsin, 501 U.S. 171, 181 (1991))).
15. Many judges are elected and thus subject to political pressure to appear tough on crime. American Bar Ass’n, Fact Sheet on Judicial Selection Methods in the States 1, http://www.abanet.org/leadership/fact_sheet.pdf (noting that judges in thirty-nine states are elected)
16. Steven P. Croley, The Majoritarian Difficulty: Elective Judiciaries and the Rule of Law, 62 U. Chi. L. Rev. 689, 727 (1995).
17. Frederick Schauer, Playing by the Rules: A Philosophical Examination of Rule-Based Decision-Making in Law and in Life 17–31 (1991)
18. Ronald M. Dworkin, The Model of Rules, 35 U. Chi. L. Rev. 14, 22–29 (1967)
19. Louis Kaplow, Rules Versus Standards: An Economic Analysis, 42 Duke L.J. 557, 571–86 (1992)
20. Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 Harv. L. Rev. 1685 (1976)
21. Pierre Schlag, Rules and Standards, 33 UCLA L. Rev. 379 (1985).
22. Adam I. Muchmore, Jurisdictional Standards (and Rules), 46 Vand. J. Transnat’l L. 171, 183–87 (2013) (describing this trend in choice of law)
23. Carol M. Rose, Crystals and Mud in Property Law, 40 Stan. L. Rev. 577, 577–90 (1988) (describing this trend in property law).
24. Neumeier v. Kuehner, 286 N.E.2d 454, 457–58 (N.Y. 1972), describing the evolution of choice of law in personal injury cases and explaining how courts moved from a mechanical place of injury rule to an openended standard that considered which jurisdiction had the greatest concern with or interest in the litigation, and then moved back to a multipronged rule.
25. Daniel A. Crane, Rules Versus Standards in Antitrust Adjudication, 64 Wash. & Lee L. Rev. 49, 49–71 (2007) (describing this trend in antitrust law)
26. Matthew G. Dore, Statutes of Limitation and Corporate Fiduciary Claims: A Search for Middle Ground on the Rules/ Standards Continuum, 63 Brook. L. Rev. 695, 720–32 (1997) (explaining this trend in corporate law)
27. David A. Weisbach, Formalism in the Tax Law, 66 U. Chi. L. Rev. 860, 860–63 (1999) (explaining how lawmakers are shifting the tax system away from rules toward standards).
28. The famous fight between Justice Holmes and Justice Cardozo about the meaning of reasonableness in tort law nicely illustrates this trend. Compare Balt. & Ohio R.R. v. Goodman, 275 U.S. 66, 70 (1927) (Holmes, J.) (developing a rule that a car driver negligently crosses railroad tracks unless he stops and gets out of his car to look for a train before crossing)
29. Pokora v. Wabash Ry., 292 U.S. 98 (1934) (Cardozo, J.) (limiting Goodman and reverting back to a reasonableness standard). 14. See infra Part I
30. Crane, supra note 13, at 51–52
31. Rose, supra note 12, at 590–97
32. Terry v. Ohio, 392 U.S. 1, 10 (1968) (“[I]n dealing with the rapidly unfolding and often dangerous situations on city streets the police are in need of an escalating set of flexible responses . . . .”).
33. allowing police to stop and frisk a suspect based on reasonable suspicion that the suspect is armed and dangerous
34. Johnson v. United States, 333 U.S. 10, 14 (1948).
35. See, e.g., Maryland v. Shatzer, 559 U.S. 98, 110 (2010) (establishing a rule that once a suspect invokes her Miranda right to counsel, the police may reapproach her after a two-week break in custody, and noting that “law enforcement officers need to know, with certainty and beforehand, when renewed interrogation is lawful”)
36. Cnty. of Riverside v. McLaughlin, 500 U.S. 44, 55–58 (1991) (specifying forty-eight hours as the time within which police must present a person arrested without a warrant to a magistrate to establish probable cause for continued detention)
37. Kaplow, supra note 10, at 577 (recognizing that rules often dominate when a law must be applied frequently because the costs of a one-time promulgation of the rule are less than the costs of repeatedly enforcing a standard)
38. Wayne R. LaFave, The Fourth Amendment in an Imperfect World: On Drawing “Bright Lines” and “Good Faith”, 43 U. Pitt. L. Rev. 307 (1982) (discussing the Supreme Court’s tendency to want to draw bright line rules).
39. Brown v. Mississippi, 297 U.S. 278 (1936)
40. Blackburn v. Alabama, 361 U.S. 199, 207 (1960).
41. Lisenba v. California, 314 U.S. 219, 236 (1941) (“The aim of the requirement of due process is . . . to prevent fundamental unfairness in the use of evidence . . . .”).
42. Ashcraft v. Tennessee, 322 U.S. 143, 152–54 (1944).
43. Culombe v. Connecticut, 367 U.S. 568, 602 (1961) (plurality opinion) (noting that voluntariness considers whether “the confession [is] the product of an essentially free and unconstrained choice by its maker”).
44. See, e.g., Blackburn, 361 U.S. at 207
45. See, e.g., H. Frank Way, Jr., The Supreme Court and State Coerced Confessions, 12 J. Pub. L. 53, 65 (1963) (surveying lower court cases and noting that courts would “pick and choose the precedents” to reach whatever results they wanted).
46. See Geoffrey R. Stone, The Miranda Doctrine in the Burger Court, 1977 Sup. Ct. Rev. 99, 102 (1977) (describing the “persistence of state courts in utilizing the ambiguity of [voluntariness] to validate confessions of doubtful constitutionality”).
47. Beecher v. Alabama, 389 U.S. 35 (1967)
48. Brown v. Mississippi, 297 U.S. 278 (1936)
49. Leo, supra note 3, at 51, 69 (describing the use of the “third degree” during this time).
50. Brown, 297 U.S. at 279 (noting that, aside from the confessions, there was not sufficient evidence of the defendants’ guilt).
51. See Dickerson v. United States, 530 U.S. 428, 434 (2000) (“[The Supreme Court] applied the due process voluntariness test in ‘some 30 different cases decided during the era that intervened between Brown and Escobedo . . . .’ ” (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 223 (1973)))
52. Transcript of Oral Argument, Vignera v. New York, 384 US. 436 (1966) (No. 760) (“[I]f you’re going to determine [the admissibility of the confession] each time on the circumstances . . . [if] this Court would take them up one by one . . . . [it is] more than we are capable of doing.” (Black, J.)).
53. See Walter V. Schaefer, The Suspect and Society: Criminal Procedure and Converging Constitutional Doctrines 9–10 (1967) (“Pressing upon [the Supreme Court] are hundreds of cases every year in which, in one form or another, the claim is advanced that the constitutional rights of a convicted man were violated through the use at his trial of a confession . . . . It seems inevitable that the Supreme Court will be searching for some automatic device by which the potential evils of incommunicado interrogation can be controlled.”).
54. See, e.g., Crooker v. California, 357 U.S. 433 (1958) (considering and rejecting a rule that would deem continued questioning of a suspect after he requested counsel a violation of due process)
55. Cicenia v. Lagay, 357 U.S. 504 (1958) (considering and rejecting a rule that would deem it a violation of due process if police continued to question a suspect outside the presence of his lawyer when the suspect had asked to see his lawyer and his lawyer was present at the station and requesting to speak with the client).
56. Weisselberg, supra note 6, at 1595 (describing Miranda as “an obstacle to the more important assessment of voluntariness”).
57. See, e.g., People v. Medina, 25 P.3d 1216, 1225–26 (Colo. 2001) (en banc)
58. Commonwealth v. Nga Truong, No. CV20090385, 28 Mass. L. Rptr. 223, at *3 (Super. Ct. Feb. 25, 2011).
59. Chicago Inquiry: Police Tortured Black Suspects, NBCNEWS.com (July 19, 2006, 5:51 PM), http://www.nbcnews.com/id/13936994/ns/us_news-life/t/chicago-inquiry-police-tor tured-black-suspects/#.VIsXPjHF_To
60. Dana Liebelson, This Legislation Could Stop the Next Eric Garner Tragedy in New York, Huffington Post (Dec. 3, 2014, 7:05 PM), http://www.huffingtonpost.com/2014/12/03/this-legislation-could-st_n_6264938.html.
61. A great deal of attention is now focused on police use of force and the distrust between police departments and communities of color in this country in the wake of the deaths of Michael Brown and Eric Garner.
62. Steve Holland & Julia Edwards, Obama Vows to Address “Simmering Distrust” Between Police, Minorities, Reuters (Dec. 1, 2014, 6:36 PM), http://www.reuters.com/article/ 2014/12/01/us-usa-missouri-shooting-obama-idUSKCN0JF2ZH20141201.
63. It is too soon to know whether the move for reform of police procedures will include a discussion of policecitizen interactions after the initial arrest stage when suspects are interrogated.
64. Sophia Pearson et al., Torture-Linked CIA Officials Face Future Stuck in U.S., Bloomberg (Dec. 10, 2014, 8:06 PM), http://www.bloomberg.com/news/2014-12-11/torturelinked- cia-officials-face-future-stuck-on-u-s-.html
65. Daniel S. Medwed, Innocentrism, 2008 U. Ill. L. Rev. 1549, 1549 (noting that criminal procedure is “undergoing a transformation due to the increasing centrality of issues related to actual innocence in courtrooms, classrooms, and newsrooms”).
66. Garrett, supra note 3, at 1115–16 (arguing for better police regulations)
67. Saul M. Kassin et al., Police-Induced Confessions: Risk Factors and Recommendations, 34 Law & Hum. Behav. 3, 30–31 (2010) (arguing for better police training)
68. Richard A. Leo et al., Bringing Reliability Back In: False Confessions and Legal Safeguards in the Twenty-First Century, 2006 Wis. L. Rev. 479, 531–35 (arguing for pretrial reliability assessments under federal and state evidentiary rules and statutes).
69. I include state constitutional interpretation in my analysis, because many states have incorporated the Supreme Court’s voluntariness doctrine into their state constitutional analyses
70. “Can we not best understand the entire course of decisions in this field . . . as an application to confessions both of a privilege against evidence illegally obtained . . . and of an overlapping rule of incompetency which excludes the confessions when untrustworthy?”
71. Joseph D. Grano, Voluntariness, Free Will, and the Law of Confessions, 65 Va. L. Rev. 859, 909–24 (1979) (describing “[t]he [f]airness or [u]ndue [i]nfluence” and “trustworthiness” concerns that animate voluntariness)
72. Monrad G. Paulsen, The Fourteenth Amendment and the Third Degree, 6 Stan. L. Rev. 411, 429 (1954) (noting that there was a “police methods” focus and a “trustworthiness” focus in the Court’s voluntariness doctrine).
73. 479 U.S. 157 (1986).
74. Brandon L. Garrett, Convicting the Innocent: Where Criminal Prosecutions Go Wrong 37 (2011)
75. George E. Dix, Federal Constitutional Confession Law: The 1986 and 1987 Supreme Court Terms, 67 Tex. L. Rev. 231, 272–76 (1988)
76. Leo et al., supra note 41, at 498–99
77. Paulsen, supra note 46, at 429–35 (arguing that voluntariness doctrine should be disentangled).
78. U.S. Const. amend. V. 51. Miranda v. Arizona, 384 U.S. 436, 467–71, 475 (1966).
79. U.S. Const. amend. VI. 53. Massiah v. United States, 377 U.S. 201, 205–06 (1964).
80. Spano v. New York, 360 U.S. 315, 321–24 (1959).
81. Barry Friedman, The Wages of Stealth Overruling (with Particular Attention to Miranda v. Arizona), 99 Geo. L.J. 1, 24 (2010) (“Miranda has effectively been overruled.”).
82. Although the Supreme Court discussed the voluntariness of confessions before the 1930s, see, e.g., Hopt v. Utah, 110 U.S. 574, 584–85 (1884)
83. it was not until Brown v. Mississippi, 297 U.S. 278 (1936), that it started using due process to regulate police interrogation in the states.
84. Brown, 297 U.S. 278
85. Spano, 360 U.S. at 323
86. Lisenba v. California, 314 U.S. 219, 236–37 (1941).
87. Blackburn v. Alabama, 361 U.S. 199, 207 (1960).
88. Culombe v. Connecticut, 367 U.S. 568, 602 (1961) (plurality opinion).
89. Way, supra note 25, at 65
90. Stone, supra note 26, at 102–03
91. “Given the Court’s inability to articulate a clear and predictable definition of ‘voluntariness,’ the apparent persistence of state courts in utilizing the ambiguity of the concept to validate confessions of doubtful constitutionality, and the resultant burden on its own workload, it seemed inevitable that the Court would seek ‘some automatic device by which the potential evils of incommunicado interrogation [could] be controlled.’ ” (alteration in original) (footnote omitted) (quoting Schaefer, supra note 30, at 10).
92. 377 U.S. 201 (1964).
93. Massiah, 377 U.S. at 206–07
94. United States v. Wade, 388 U.S. 218, 235–36 (1967) (“The trial which might determine the accused’s fate may well not be that in the courtroom but that at the pretrial confrontation, with the State aligned against the accused . . . [who is] unprotected against [police] overreaching . . . .”).
95. The Supreme Court later clarified that the right to counsel is triggered by “the initiation of adversary judicial criminal proceedings,” whether by means of a formal charge, a preliminary hearing, an indictment, an information, an arraignment, or a first formal hearing.
96. Rothgery v. Gillespie Cnty., 554 U.S. 191, 198 (2008).
97. I refer to this point as “post-indictment,” but I mean to include all of these triggering events.
98. 384 U.S. 436 (1966).
99. Miranda, 384 U.S. at 467–73. Miranda was the Court’s second attempt to provide more specific regulations for pre-indictment interrogation practices.
100. Escobedo v. Illinois, 378 U.S. 478 (1964) (holding that suspects would have a right to counsel during police interrogations pre-indictment in certain circumstances).
101. The scope of Escobedo was unclear, and Miranda quickly displaced it.
102. Miranda, 384 U.S. at 457–58
103. Arthur J. Goldberg, Can We Afford Liberty?, 117 U. Pa. L. Rev. 665, 674 (1969) (praising the “specificity” of Miranda and criticizing the voluntariness doctrine).
104. See Missouri v. Seibert, 542 U.S. 600, 608–09 (2004) (“[G]iving the warnings and getting a waiver has generally produced a virtual ticket of admissibility maintaining that a statement is involuntary even though given after warnings and voluntary waiver of rights requires unusual stamina . . . .”)
105. Berkemer v. McCarty, 468 U.S. 420, 433 n.20 (1984) (“[C]ases in which a defendant can make a colorable argument that a self-incriminating statement was ‘compelled’ despite the fact that the law enforcement authorities adhered to the dictates of Miranda are rare.”)
106. George C. Thomas & Richard A. Leo, Confessions of Guilt: From Torture to Miranda and Beyond 219 (“[C]ourts tend to treat a Miranda waiver as a near-conclusive presumption that all subsequent statements are uncoerced.”).
107. Michigan v. Jackson, 475 U.S. 625 (1986) (importing a Miranda rule into the Massiah context but noting the different reasons why the rule should apply)
108. overruled by Montejo v. Louisiana, 556 U.S. 778 (2009).
109. See Richard A. Leo, Questioning the Relevance of Miranda in the Twenty-First Century, 99 Mich. L. Rev. 1000, 1021 (2001) (explaining how Miranda “displac[ed] the case-by-case voluntariness standard as the primary test of a confession’s admissibility”).
110. 77 384 U.S. at 457–58
111. Miranda, 384 U.S. at 492–99
112. California v. Beheler, 463 U.S. 1121, 1123–24 (1983)
113. Oregon v. Mathiason, 429 U.S. 492, 495 (1977).
114. Berkemer v. McCarty, 468 U.S. 420, 439–41 (1984).
115. See, e.g., Mathis v. United States, 391 U.S. 1, 4–5 (1968) (holding that the federal government erred when it failed to Mirandize a suspect being held in state custody on other charges and rejecting the government’s argument that he was not in custody)
116. United States v. Cadmus, 614 F. Supp. 367, 370 (S.D.N.Y. 1985) (“Mathis makes it clear that an individual imprisoned, irrespective of the reason for his incarceration, is in custody.”).
117. Although Mathis did not impose a per se rule that custody always exists when someone is in prison, courts often found custody under the totality of the circumstances. E.g., Arthur v. State, 575 So. 2d 1165, 1188 (Ala. Crim. App. 1990).
118. But see Illinois v. Perkins, 496 U.S. 292, 296 (1990) (noting that a suspect who is questioned by an undercover officer is not in custody because he is unaware that he is speaking to law enforcement).
119. 84 132 S. Ct. 1181 (2012).
120. Fields, 132 S. Ct. at 1193–94
121. “Fields believed the deputies ‘would not have allowed [him] to leave the room.’ And with good reason . . . .” (alteration in original) (citation omitted) quoting Appendix to Petition for Certiorari at 72a
122. Howes v. Fields, 132 S. Ct. 1181 (2012) (No. 10-680)
123. Michelle Parilo, Note, Protecting Prisoners During Custodial Interrogations: The Road Forward After Howes v. Fields, 33 B.C. J.L. & Soc. Just. 217, 245–46 (2013) (“Upon incarceration, prisoners are forced to abandon their self-reliance and relinquish their freedom, and this mindset does not simply disappear when prisoners enter the interrogation room.”).
124. Carolyn W. Deady, Pell Ctr. for Int’l Relations & Pub. Policy, Incarceration and Recidivism: Lessons from Abroad (2014), http://www.salve.edu/sites/default/files/filesfield/documents/Incarceration_and_Recidivism.pdf.
125. 501 U.S. 171 (1991).
126. McNeil, 501 U.S. at 176.
127. for which he has at least had a first formal hearing. Rothgery v. Gillespie Cnty., 554 U.S. 191, 213 (2008).
128. Sometimes police have been looking for a suspect but only find him once he is picked up on an unrelated charge. Other times, DNA samples that are collected at the time of arrest or conviction provide cold hits to unsolved crimes and trigger police investigation.
129. Maryland v. King, 133 S. Ct. 1958, 1966–68 (2013) (discussing these DNA collection statutes).
130. In still other circumstances, jailhouse informants contact police to tell them about another inmate’s potential involvement in criminal activity with the hopes of getting a deal for themselves.
131. Alexandra Natapoff, Snitching: Criminal Informants and the Erosion of American Justice (2009).
132. 101 560 U.S. 370 (2010).
133. Thompkins, 560 U.S. at 385
134. see also Thomas & Leo, supra note 74, at 192 (“Thompkins is perhaps the most significant Miranda case yet decided.”)
135. Kamisar, supra note 7, at 1019 (“Thompkins is a case where the Court fired point-blank at Miranda.”).
136. Thompkins, 560 U.S. at 384
137. Patterson, 487 U.S. 285
138. United States v. Sepulveda-Sandoval, 729 F. Supp. 2d 1078, 1102–03 (D.S.D. 2010)
139. Witmer-Rich, supra note 6, at 1233 (“[T]here is every reason to think the Court will apply the Thompkins rule equally in the Sixth Amendment context.”).
140. The police don’t need to recite the Miranda warnings verbatim if they say words that are functionally equivalent and basically inform people of their rights. Florida v. Powell, 559 U.S. 50, 60 (2010)
141. Duckworth v. Eagan, 492 U.S. 195, 203 (1989)
142. California v. Prysock, 453 U.S. 355, 361 (1981).
143. This does not require much. See, e.g., United States v. Sanchez-Chaparro, 392 F. App’x 639, 644 (10th Cir. 2010) (holding that a Spanish speaker could understand the warnings even though they were given in English and he appeared to have trouble understanding them at the station)
144. State v. Moses, 702 S.E.2d 395, 401–02 (S.C. Ct. App. 2010) (holding that the lower court did not err in concluding that a seventeen-year-old suspect who was enrolled in special education classes and could read and write at only a third grade level was able to meaningfully understand the Miranda warnings)
145. see also James J. Tomkovicz, Standards for Invocation and Waiver of Counsel in Confession Contexts, 71 Iowa L. Rev. 975, 1049 (1986) (“The policies of the fifth amendment privilege do not demand rationality, intelligence, or knowledge, but only a voluntary choice not to remain silent.”).
146. 108 451 U.S. 477 (1981).
147. Edwards, 451 U.S. at 485
148. see also Oregon v. Bradshaw, 462 U.S. 1039, 1044–46 (1983) (plurality opinion) (establishing the standard for re-initiation).
149. Arizona v. Roberson, 486 U.S. 675, 687 (1988).
150. Minnick v. Mississippi, 498 U.S. 146, 155–56 (1990).
151. Michigan v. Jackson, 475 U.S. 625, 625 (1986)
152. overruled by Montejo v. Louisiana, 556 U.S. 778 (2009).
153. 113 512 U.S. 452 (1994).
154. Davis, 512 U.S. at 461
155. See, e.g., Marinelli v. Beard, No. 4:CV-07-0173, 2012 WL 5928367, at *49 (M.D. Pa. Nov. 26, 2012)
156. United States v. Bacote, No. 05-234, 2006 WL 1579998, at *8 (D. Minn. June 2, 2006).
157. Berghuis v. Thompkins, 560 U.S. 370, 370–71 (2010).
158. See generally Janet E. Ainsworth, In a Different Register: The Pragmatics of Powerlessness in Police Interrogation, 103 Yale L.J. 259 (1993).
159. Miranda v. Arizona, 384 U.S. 436, 457–58 (1966).
160. Marcy Strauss, Understanding Davis v. United States, 40 Loy. L.A. L. Rev. 1011, 1040–41, 1055 (2007) (examining hundreds of cases and explaining that courts overwhelmingly find invocations ambiguous).
161. Midkiff v. Commonwealth, 462 S.E.2d 112, 114–15 (Va. 1995).
162. Diaz v. Senkowski, 76 F.3d 61, 63–65 (2d Cir. 1996).
163. Dormire v. Wilkinson, 249 F.3d 801, 805 (8th Cir. 2001).
164. State v. Stover, No. 96CA006461, 1997 Ohio App. LEXIS 1493, at *4 (Ohio Ct. App. Apr. 16, 1997).
165. United States v. Hsin-Yung, 97 F. Supp. 2d 24, 32 (D.D.C. 2000).
166. 559 U.S. 98 (2010).
167. Shatzer, 559 U.S. at 110
168. Howes v. Fields, 132 S. Ct. 1181, 1194 (2012).
169. 556 U.S. 778, 789 (2009).
170. Mincey v. Arizona, 437 U.S. 385, 398 (1978).
171. People v. Ditson, 369 P.2d 714, 727 (Cal. 1962) (applying fruits doctrine to an involuntary confession)
172. Wayne R. LaFave et al., Criminal Procedure § 9.5(a), at 466–72 (3d ed. 2007).
173. Joshua Dressler & Alan C. Michaels, Understanding Criminal Procedure 374–81 (6th ed. 2013) (describing fruits doctrine and its exceptions).
174. See Yale Kamisar, On the “Fruits” of Miranda Violations, Coerced Confessions, and Compelled Testimony, 93 Mich. L. Rev. 929, 993–1000 (1995) (describing the fruit-of-thepoisonous- tree cases and explaining why many assumed that fruits doctrine applied to confession questions).
175. See Oregon v. Hass, 420 U.S. 714, 722–24 (1975)
176. Harris v. New York, 401 U.S. 222, 225–26 (1971).
177. 137 556 U.S. 586, 593–94 (2009).
178. 138 467 U.S. 431 (1984).
179. Blackburn v. Alabama, 361 U.S. 199, 207 (1960).
180. Michael J. Sandel, Liberalism and the Limits of Justice 3 (2d ed. 1998) (describing deontology as an ethic of categorical duties which stands in contrast to an ethic focusing on practical consequences).
181. Colorado v. Connelly, 479 U.S. 157, 164 (1986).
182. Others have described this as the “police methods” branch of voluntariness doctrine or the branch predicated on “offensive” police conduct.
183. Albert W. Alschuler, Constraint and Confession, 74 Denv. U. L. Rev. 957, 957 (1997) (“offensive governmental conduct”)
184. Kamisar, supra note 147, at 754 (“offensive or deliberate and systematic police misconduct”)
185. Paulsen, supra note 46, at 431 (“police methods”).
186. 154 297 U.S. 278 (1936).
187. Brown, 297 U.S. at 286
188. Sheriff v. Bessey, 914 P.2d 618, 622 (Nev. 1996) (noting that police interrogation techniques that “revolt our sense of justice” are involuntary).
189. Chavez v. Martinez, 538 U.S. 760, 774 (2003) (plurality opinion)
190. quoting Rochin v. California, 342 U.S. 165, 172 (1952)
191. Miller v. Fenton, 474 U.S. 104, 109 (1985)
192. describing some tactics as “[in]compatible with a system that presumes innocence and assures that a conviction will not be secured by inquisitorial means”
193. Brown, 297 U.S. at 286
194. Chambers v. Florida, 309 U.S. 227, 236 (1940).
195. Brown, 297 U.S. at 286
196. see also Lisenba v. California, 314 U.S. 219, 236 (1941) (“The aim of the requirement of due process is . . . to prevent fundamental unfairness in the use of evidence . . . .”)
197. United States v. Preston, 751 F.3d 1008, 1020 (9th Cir. 2014) (en banc) “[T]he voluntariness determination ‘reflects deep, even if inarticulate, feelings of our society’ about the acceptability of the imposition of certain interrogation methods on a particular person.”
198. quoting Haley v. Ohio, 332 U.S. 596, 603 (1948) (Frankfurter, J., concurring).
199. 161 322 U.S. 143 (1944).
200. See, e.g., Beecher v. Alabama, 389 U.S. 35, 38 (1967) (holding that the “inescapable conclusion” is that a confession is involuntary when obtained at gunpoint)
201. Culombe v. Connecticut, 367 U.S. 568, 622 (1961) (plurality opinion) (describing physical brutality and threats of physical brutality as “obvious, crude” devices to break a person’s will)
202. Brown, 297 U.S. 278
203. United States v. Jenkins, 938 F.2d 934, 938 (9th Cir. 1991) (“[C]onfessions accompanied by physical violence wrought by the police have been considered per se inadmissible.”)
204. People v. Zayas, 931 N.Y.S.2d 109, 111 (App. Div. 2011) (same).
205. The distinction between per se offensive tactics and those that are offensive under a totality-of-the-circumstances analysis is similar to Professor White’s objective/subjective distinction. See White, supra note 3, at 45 (“In regulating coercive interrogation practices, the Court adopted both objective and subjective standards. In Ashcraft, for example, it established an objective standard, holding that thirty-six hours of virtually continuous interrogation was ‘inherently coercive’ without regard to the particular suspect’s powers of resistance . . . . In other cases, however, the Court employed a subjective standard, considering the suspect’s individual characteristics . . . .”).
206. As I discuss infra Section III.A, under my typology, only obvious characteristics of a suspect would be relevant under the offensive-police-methods branch of voluntariness
207. 367 U.S. 568 (1961).
208. Culombe, 367 U.S. at 580 (plurality opinion).
209. Garrett, supra note 3, at 1109 (“The concern with the possible unreliability of coerced confessions has ancient roots.”)
210. White, supra note 3, at 39 (similar)
211. Kamisar, supra note 135, at 937 (similar).
212. Scott’s Case, (1856) 169 Eng. Rep. 909 (Q.B.) 914 1 D. & B. 47, 58 (“It is a trite maxim that the confession of a crime, to be admissible against the party confessing, must be voluntary but this only means that it shall not be induced by improper threats or promises, because, under such circumstances, the party may have been influenced to say what is not true, and the supposed confession cannot be safely acted upon.”)
213. see also King v. Warickshall, (1783) 168 Eng. Rep. 234 (K.B.) 234–35 (“Confessions are received in evidence, or rejected as inadmissible, under a consideration whether they are or are not intitled to credit. A free and voluntary confession is deserving of the highest credit, because it is presumed to flow from the strongest sense of guilt . . . but a confession forced from the mind by the flattery of hope, or by the torture of fear, comes in so questionable a shape . . . that no credit ought to be given to it and therefore it is rejected.”).
214. Hopt v. Utah, 110 U.S. 574, 585 (1884) (noting that promises of leniency and threats of violence were problematic because they remove the presumption “that one who is innocent will not imperil his safety or prejudice his interests by an untrue statement”)
215. see also Wilson v. United States, 162 U.S. 613, 622 (1896) (same).
216. The lower courts had already recognized that voluntariness was animated by concerns about the reliability of confessions.
217. State v. Bostick, 4 Del. (4 Harr.) 563, 564 (1845) (noting that a confession obtained as a result of promises or threats poses a “great danger . . . that the confession . . . may be untrue” and must be suppressed).
218. Stein v. New York, 346 U.S. 156, 196 (1953) (describing the voluntariness doctrine as a constitutional doctrine “for protection of the innocent”)
219. McCormick, supra note 46, at 232 (“Procurement of a confession by trick or deception does not vitiate it, unless the deception is calculated to prompt the victim to confess falsely.”)
220. 3 John Henry Wigmore, A Treatise on the Anglo-American System of Evidence in Trials at Common Law § 822, at 246 (3d ed. 1940) (“The principle upon which a confession is treated as sometimes inadmissible is that under certain conditions it becomes untrustworthy as testimony.”)
221. Kamisar, supra note 147, at 755 (noting that the Supreme Court’s cases were concerned with the truth or falsity of the resulting confession).
222. Fred E. Inbau & John E. Reid, Lie Detection and Criminal Interrogation 222 (3d ed. 1953) (noting that “trickery or deception” will not nullify a confession as long as it is not “of such a nature as to be likely to produce an untrue confession”).
223. United States v. Rutledge, 900 F.2d 1127, 1129 (7th Cir. 1990) (“Of course if the confession is unreliable, it should go out . . . .”)
224. State v. Kelekolio, 849 P.2d 58, 73 (Haw. 1993) (“[D]eliberate falsehoods . . . which are of a type reasonably likely to procure an untrue statement or to influence an accused to make a confession regardless of guilt, will be regarded as coercive . . . .”)
225. Sheriff v. Bessey, 914 P.2d 618-622 (Nev. 1996) (holding that police interrogation techniques that “produce inherently unreliable statements” are involuntary)
226. Garrett, supra note 3, at 1100–01 (studying forty false confession cases and emphasizing that the trial judges often discussed reliability when ruling on the voluntariness of the confessions)
227. Welsh S. White, What Is an Involuntary Confession Now?, 50 Rutgers L. Rev. 2001, 2007 (1998) (“[T]he voluntariness test was and is designed to exclude confessions resulting from interrogation methods likely to produce untrustworthy statements.”).
228. Day v. State, 29 So. 3d 1178, 1181 (Fla. Dist. Ct. App. 2010) (“If the interrogator induces the accused to confess by using language which amounts to a threat or promise of benefit, then the confession may be untrustworthy and should be excluded.” (quoting Fillinger v. State, 349 So. 2d 714, 716 (Fla. Dist. Ct. App. 1977)
229. State v. Zarate, No. 11-0530, 2012 WL 652449, at *6 (Iowa Ct. App. Feb. 29, 2012) (“[T]he question is ‘whether the language used amounts to an inducement which is likely to cause the subject to make a false confession.’ ” (quoting State v. Mullin, 85 N.W.2d 598, 602 (Iowa 1957))).
230. State v. Valero, 285 P.3d 1014, 1020 (Idaho Ct. App. 2012) (describing the detective’s representation that the suspect could be charged with a more serious offense if he did not confess as the “most critical[ ]” element of its voluntariness analysis and emphasizing that “[i]t is precisely the type of coercive tactic that could induce an innocent person to confess”).
231. See Culombe v. Connecticut, 367 U.S. 568, 575 (1961) (plurality opinion) (“[Q]uestioning that is long continued . . . inevitably suggests that the questioner has a right to, and expects, an answer.”).
232. See, e.g., Ross v. State, 45 So. 3d 403, 433 (Fla. 2010) (“[T]he danger of police engaging in the type of tactics exhibited in this case is . . . that the confession itself is unreliable.”)
233. State v. Lynch, 686 S.E.2d 244, 248–49 (Ga. 2009) (Nahmias, J., concurring) (considering “the reliability of a confession” as an important part of the voluntariness analysis).
234. Yale Kamisar recognized these two forms more than fifty years ago.
235. Kamisar, supra note 147, at 753 (“A good deal turns on whether one means: (A) Is this particular defendant’s confession ‘unreliable’ or ‘untrustworthy?’ or (B) What is the likelihood, objectively considered, that the interrogation methods employed in this case create a substantial risk that a person subjected to them will falsely confess . . . ?”).
236. Melissa B. Russano et al., Investigating True and False Confessions Within a Novel Experimental Paradigm, 16 Psychol. Sci. 481 (2005) (using an experimental setting to demonstrate that the use of minimization techniques put innocent participants at risk for false confessions)
237. Fadia M. Narchet et al., Modeling the Influence of Investigator Bias on the Elicitation of True and False Confessions, 35 Law & Hum. Behav. 452 (2010) (expanding that experimental result to maximization techniques).
238. The advent of DNA analysis and the proliferation of innocence clinics have led to the exoneration of hundreds of prisoners, many of whom were convicted on the basis of false confessions.
239. Thomas & Leo, supra note 74, at 220 (“False confessions are the third leading cause of wrongful convictions.”)
240. Samuel R. Gross et al., Exonerations in the United States 1989 Through 2003, 95 J. Crim. L. & Criminology 523, 544–46 (2005) (reporting fifty-one false confession cases).
241. As a result, social scientists have been able to study and identify a number of police interrogation tactics that significantly increase the likelihood of false confessions.
242. Kassin et al., supra note 41, at 4, 15–23 (summarizing current research).
243. Steven A. Drizin & Richard A. Leo, The Problem of False Confessions in the Post-DNA World, 82 N.C. L. Rev. 891, 919–20, 963–74 (2004)
244. Garrett, supra note 3, at 1116
245. Kassin et al., supra note 41, at 20–21.
246. For this reason, police training manuals often counsel against using fictitious evidence when interrogating members of these populations.
247. Fred E. Inbau et al., Criminal Interrogation and Confessions 255 (5th ed. 2013) (“[T]his technique should be avoided when interrogating a youthful suspect with low social maturity or a suspect with diminished mental capacity.”).
248. Certain forms of fictitious evidence can also increase the likelihood that an adult suspect with no mental deficiencies will confess falsely. See infra Section III.B.1.a.
249. 297 U.S. 278 (1936).
250. Brown, 297 U.S. at 279
251. Townsend v. Sain, 372 U.S. 293, 307 (1963) requiring confessions to be “the product of a rational intellect and a free will”
252. Blackburn v. Alabama, 361 U.S. 199, 208 (1960)
253. see also Culombe v. Connecticut, 367 U.S. 568, 602 (1961) (plurality opinion) (requiring confessions to be “the product of an essentially free and unconstrained choice”).
254. See, e.g., Townsend, 372 U.S. at 307–08 (holding that a suspect’s confession was involuntarily given when the suspect confessed only after being given a drug that had the properties of a truth serum and noting that “[i]t is difficult to imagine a situation in which a confession would be less the product of a free intellect, less voluntary, than when brought about by [such] a drug”)
255. Blackburn v. Alabama, 361 U.S. 199, 210–11 (1960) (holding that the confession of an insane person was involuntary in fact and noting that “the evidence here clearly establishes that the confession most probably was not the product of any meaningful act of volition”)
256. see also Townsend, 372 U.S. at 308 (“Any questioning by police officers which in fact produces a confession which is not the product of a free intellect renders that confession inadmissible.”).
257. 479 U.S. 157 (1986).
258. Connelly, 479 U.S. at 167
259. infra Section III.B.1 (discussing the triggering requirement in effect-on-the-suspect cases).
260. Connelly’s discussion of Townsend demonstrates how some involuntary-in-fact cases will morph into offensive-police-methods cases. In Townsend, the Supreme Court held that a suspect’s confession was involuntarily given when the suspect confessed only after being given a drug that had the properties of a truth serum.
261. Townsend, 372 U.S. at 307–09.
262. The Connelly Court did not overrule Townsend. It recharacterized the case as one involving offensive police methods. The concern in Townsend was not that the resulting confession was unreliable. (The truth serum meant that it was incredibly reliable.) Rather, the Connelly Court described Townsend as a case involving “police wrongdoing.”
263. Connelly, 479 U.S. at 165. It was offensive for the police to drug a suspect and then elicit a confession from him in that drug-induced state. According to the Connelly Court, the “integral element of police overreaching” was present.
264. Garrett, supra note 48, at 37 (“The U.S. Supreme Court has held that unreliability is irrelevant to the question whether a confession statement is sufficiently voluntary to be admitted at trial.”)
265. Dix, supra note 48, at 272–73 (similar)
266. Leo et al., supra note 41, at 499 (similar).
267. White, supra note 3, at 197–98 (suggesting that a “close reading of Connelly” reveals that it did not significantly affect the due process analysis and did not intend to preclude courts from considering the trustworthiness of the confession).
268. Connelly, 479 U.S. at 167 (“A statement rendered by one in the condition of respondent might be proved to be quite unreliable, but this is a matter to be governed by the evidentiary laws of the forum, and not by the Due Process Clause . . . . ‘The aim of the requirement of due process is not to exclude presumptively false evidence, but to prevent fundamental unfairness in the use of evidence, whether true or false.’ ” (citation omitted) (quoting Lisenba v. California, 314 U.S. 219, 236 (1941))).
269. Perry v. New Hampshire, 132 S. Ct. 716, 730 (2012) (holding that the Due Process Clause is appropriately used to exclude unreliable identifications only after a showing has been made that the suggestive identification process was police orchestrated).
270. White, supra note 3, at 199 (arguing that, even after Connelly, “an interrogation method that is substantially likely to induce an untrustworthy statement should still be impermissible under the due process test”).
271. 361 U.S. 199 (1960).
272. Blackburn, 361 U.S. at 207 (“[A] most basic sense of justice is affronted by the spectacle of incarcerating a human being upon the basis of a statement he made while insane and this judgment can without difficulty be articulated in terms of the unreliability of the confession . . . .”)
273. According to the Connelly Court, the police knew that Blackburn was a mental patient and questioned him, exploit[ing] this weakness
274. Connelly, 479 U.S. at 164–65
275. In addition to Connelly, there are two other cases that scholars cite to argue that reliability is not a valid consideration of voluntariness. Neither precludes courts from relying on an effect-on-the-suspect form of voluntariness.
276. In Lisenba v. California, 314 U.S. 219 (1941), the Court stated that “[t]he aim of the requirement of due process is not to exclude presumptively false evidence, but to prevent fundamental unfairness in the use of evidence, whether true or false.”
277. 314 U.S. 219, 236 (1941).
278. But that language was dicta, and there was language elsewhere in the opinion that recognized the importance of reliability in voluntariness analyses. See id. (“The aim of the rule that a confession is inadmissible unless it was voluntarily made is to exclude false evidence. Tests are invoked to determine whether the inducement to speak was such that there is a fair risk the confession is false.”).
279. In Rogers v. Richmond, 365 U.S. 534 (1961), the Court stated that “a legal standard which [takes] into account the circumstance of probable truth or falsity . . . is not a permissible standard under the Due Process Clause of the Fourteenth Amendment.”
280. 365 U.S. 534, 543–44 (1961) (footnote omitted).
281. This language, however, needs to be understood in the context of that case. The state court had adopted a myopic definition of voluntariness as requiring suppression only if the police tactics were calculated to produce an untrue statement.
282. The Supreme Court rejected that definition, noting that offensive police methods could result in a finding of involuntariness even if someone was guilty.
283. The Rogers Court was careful to limit the scope of its holding. It cited other Connecticut cases with similar effect-on-the-suspect reasoning and said it was not “meaning to consider the validity of such reasoning, under the Fourteenth Amendment, in any applications, but the one now before us.”
284. Leo et al., supra note 41, at 495 n.99 (noting that the Rogers Court “was only referring to the admission of involuntary, yet trustworthy confessions” and arguing that “reliability remained a purpose of the voluntariness rule” after that case).
285. Three years after Rogers, the Supreme Court again stated that reliability was one of the animating principles of the voluntariness test.
286. Jackson v. Denno, 378 U.S. 368, 385–86 (1964) (emphasizing that the Fourteenth Amendment forbids the use of involuntary confessions, in part, “because of the probable unreliability of confessions that are obtained in a manner deemed coercive”).
287. Moreover, after Lisenba, Rogers, and Connelly, lower courts have continued to focus on reliability as an important part of the voluntariness analysis. See supra notes 173–177 and accompanying text.
288. Haley v. Ohio, 332 U.S. 596, 607 (1948) (Frankfurter, J., concurring) (noting that confessions resulting from offensive police practices must be suppressed “[t]o remove the inducement to resort to such methods”)
289. Kassin et al., supra note 41, at 11 (recognizing that Brown v. Mississippi and its progeny were designed to “deter unfair and oppressive police practices”).
290. Arizona v. Fulminante, 499 U.S. 279, 287 (1991) (threats of physical violence)
291. Paul Marcus, It’s Not Just About Miranda: Determining the Voluntariness of Confessions in Criminal Prosecutions, 40 Val. U. L. Rev. 601, 607 n.31 (2006) (collecting federal and state cases and noting that “[t]he Supreme Court has never wavered in its view that the use of violence or the threat of physical harm will virtually ensure that any resulting confession will be found to be involuntary”).
292. See generally Marcus, supra note 203 (summarizing lower court rulings on voluntariness).
293. Susan R. Klein, Identifying and (Re)formulating Prophylactic Rules, Safe Harbors, and Incidental Rights in Constitutional Criminal Procedure, 99 Mich. L. Rev. 1030, 1075 (2001) (suggesting that “the best [the] Court can do” might be “a set of per se prohibitions on certain police practices we find morally offensive”).
294. United States v. Jenkins, 938 F.2d 934, 938 (9th Cir. 1991) (“[C]onfessions accompanied by physical violence wrought by the police have been considered per se inadmissible.”).
295. Brown, 297 U.S. at 286
296. Even this prohibition will not answer all questions. Courts will still have to explain what constitutes “physical violence” versus incidental contact. If a police officer puts his hand on a suspect’s shoulder or pats him on the back, it might not be “physical violence” under some circumstances.
297. Kassin et al., supra note 41, at 16 (“[T]he vast majority of interrogations last approximately from 30 minutes up to 2 hours.”).
298. Marcus, supra note 203, at 626 (analyzing thousands of voluntariness decisions and noting that “it is striking how little guidance lawyers, judges, and law enforcement officers have in terms of the allowable time for police questioning”).
299. Maryland v. Shatzer, 559 U.S. 98, 110–11 (2010) (imposing a fourteen-day prohibition on police questioning after a suspect invokes his Miranda rights)
300. Cnty. of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991) (creating a presumption that presenting a suspect to a magistrate within forty-eight hours of arrest satisfies the prompt presentment requirement).
301. Compare Leo, supra note 3, at 311–12 (four hours)
302. White, supra note 3, at 204 (six hours)
303. Welsh S. White, False Confessions and the Constitution: Safeguards Against Untrustworthy Confessions, 32 Harv. C.R.-C.L. L. Rev. 105, 145 (1997) (five hours).
304. Valid confessions are almost always elicited within the first four hours of a competent interrogation. See infra note 259
305. See, e.g., Arizona v. Fulminante, 499 U.S. 279, 287–88 (1991) (threat of physical violence)
306. Beecher v. Alabama, 389 U.S. 35, 38 (1967) (holding that the “inescapable conclusion” is that a confession is involuntary when obtained at gunpoint)
307. Culombe v. Connecticut, 367 U.S. 568, 622 (1961) (plurality opinion) (describing threats of physical brutality as “obvious, crude” devices to break a person’s will)
308. Griffin v. Strong, 983 F.2d 1540, 1543 (10th Cir. 1993) (threat to place suspect in general population where his guts would be smashed all over the floor).
309. Georgia has a statute that makes a confession involuntary if induced by the “remotest fear of injury.” Ga. Code Ann. § 24-8-824 (2013).
310. See, e.g., People v. Beebe, No. C058783, 2009 WL 2427734, at *7 (Cal. Ct. App. Aug. 10, 2009) (threatening to “throw the book at” the suspect and “hammer” him)
311. State v. Valero, 285 P.3d 1014, 1018 (Idaho Ct. App. 2012) (threatening additional crime of lying to the police)
312. Dye v. Commonwealth, 411 S.W.3d 227, 232–33 (Ky. 2013) (threatening a juvenile with the death penalty)
313. People v. Crespo, No. 1812/10, 2010 WL 3808691, at *4–5 (N.Y. Sup. Ct. Sept. 22, 2010) (threatening to increase charges by writing a separate felony count for each bag of drugs recovered)
314. State v. Bordeaux, 701 S.E.2d 272, 279 (N.C. Ct. App. 2010) (threatening a murder prosecution).
315. United States v. Mashburn, 406 F.3d 303, 305 (4th Cir. 2005)
316. Harris v. South Carolina, 338 U.S. 68, 69–70 (1949) (plurality opinion)
317. State v. Thompson, 702 S.E.2d 198, 200–01 (Ga. 2010)
318. State v. Chavarria, 33 P.3d 922, 927–28 (N.M. Ct. App. 2001).
319. Marcus, supra note 203, at 619–21 (collecting cases).
320. New York has come close to creating a category of impermissible threats.
321. Thomas, 8 N.E.3d at 314 (“It is established that interrogators may not threaten . . . harm to the interrogee’s vital interests.”).
322. Of course, there is no clear definition of what constitutes a “vital interest.” 222.
323. Marcus, supra note 203, at 619–21
324. Klein, supra note 205, at 1074 (describing it as “inherently impossible” to define voluntariness).
325. Norman J. Singer & Shambie Singer, Statutes and Statutory Construction §§ 47.16–.17 (7th ed. 2014) (describing the statutory interpretation principles of noscitur a sociis and ejusdem generis under which words in a statutory enumeration are defined by reference to their associated words).
326. This strategy of listing cases covering known situations and then using a catch-all category for other cases is a common way regulators attempt to obtain the benefits of rules while limiting the costs.
327. Weisbach, supra note 13, at 876 (discussing this strategy in other contexts).
328. See, e.g., Leyra v. Denno, 347 U.S. 556 (1954).
329. E.g., Darwin v. Connecticut, 391 U.S. 346 (1968) (thirty to forty-eight hours)
330. Davis v. North Carolina, 384 U.S. 737 (1966) (sixteen days)
331. Haynes v. Washington, 373 U.S. 503 (1963) (sixteen hours)
332. Ward v. Texas, 316 U.S. 547 (1942) (three days)
333. Chambers v. Florida, 309 U.S. 227 (1940) (five days).
334. See, e.g., State v. Cayward, 552 So. 2d 971 (Fla. Dist. Ct. App. 1989) (laboratory reports)
335. State v. Chirokovskcic, 860 A.2d 986 (N.J. Super. Ct. App. Div. 2004) (laboratory experiments)
336. State v. Patton, 826 A.2d 783 (N.J. Super. Ct. App. Div. 2003) (audio-recorded eyewitness interviews)
337. State v. Farley, 452 S.E.2d 50, 60 n.13 (W. Va. 1994) (polygraph examination results).
338. In fact, one state has enacted a law prohibiting police officers from using fabricated documents to affect the course of their investigations
339. Tex. Penal Code Ann. § 37.09 (West 2014).
340. Fred Inbau, the author of the leading interrogation manual for police officers, has said that the use of false, incriminating documents is impermissible.
341. Inbau et al., supra note 180, at 325 n.2
342. Marcus, supra note 203, at 623–24 (summarizing cases).
343. See, e.g., Murray v. Earle, 405 F.3d 278, 288 (5th Cir. 2005)
344. Taylor v. Maddox, 366 F.3d 992, 1015 (9th Cir. 2004)
345. Boyd v. State, 726 S.E.2d 746, 749 (Ga. Ct. App. 2012)
346. In re A.S., 999 A.2d 1136, 1145–46 (N.J. 2010)
347. In re T.M., No. FJ-21-287-11, 2012 WL 593148, at *5 (N.J. Super. Ct. App. Div. Feb. 24, 2012)
348. State v. Ellvanger, 453 N.W.2d 810, 815 (N.D. 1990).
349. Marcus, supra note 203, at 643 (“The reality is that few criteria stand out as especially significant, and even fewer appellate decisions can be viewed as establishing noteworthy precedents.”).
350. Scholars have offered various approaches for determining when police methods are offensive.
351. Thomas & Leo, supra note 74, at 226 (positing a “moral choice theory” under which courts ask “whether [the alternative to talking that the suspect faced] is something that society believes police ought to be able to force on suspects”)
352. Godsey, supra note 5, at 515–39 (proposing an “objective penalty” approach under which the court begins with a baseline understanding of what a suspect should expect in an interrogation given reasonable practices and then asks whether police moved the suspect below that baseline).
353. Given that the need for guidance and consistency is driving the courts to further define voluntariness, it seems counterproductive to replace voluntariness with another open-ended standard that requires courts to make case-by-case moral judgments. A list of impermissible tactics would provide more guidance. See id. at 518 (recognizing that a “laundry list” approach may be “most consistent with the Framer’s original intent”)
354. Paulsen, supra note 46, at 437 (advocating for a list).
355. Preston, 751 F.3d at 1010, 1022 (deeming a statement made by an eighteen-yearold with an IQ of sixty-five involuntary in light of suggestive questioning and minimization tactics and noting that it is “ ‘possible for law enforcement officers to induce an involuntary statement by using techniques [on mentally disabled individuals] that would be acceptable in cases involving mentally typical suspects’ ” (quoting Morgan Cloud et al., Words Without Meaning: The Constitution, Confessions, and Mentally Retarded Suspects, 69 U. Chi. L. Rev. 495, 509 (2002))).
356. Courts have long required a causal link between offensive police tactics and the resulting confession. See, e.g., Miller v. Fenton, 796 F.2d 598, 612 (3d Cir. 1986).
357. Although I believe that courts often require too close a fit between the offensive practice and the resulting statement
358. Holland v. McGinnis, 963 F.2d 1044, 1050–51 (7th Cir. 1992) (holding that a second confession given six hours after a man had been beaten by police into giving a first confession was sufficiently attenuated), a full exploration of attenuation and causality is beyond the scope of this Article. However, just as the flagrancy of the police misconduct informs courts’ analyses regarding how much attenuation is required to dissipate the taint of illegal conduct in the Fourth Amendment context
359. Brown v. Illinois, 422 U.S. 590, 603–04 (1975), so too should it inform the analysis here. The prosecution should have to make a more significant showing of attenuation when the police use methods that are per se offensive
360. Lego v. Twomey, 404 U.S. 477, 489 (1972).
361. Colorado v. Connelly, 479 U.S. 157, 167 (1986).
362. When the police use tactics that are offensive under the offensive-police-methods form, it is like structural error that requires automatic suppression, but when they use tactics that are offensive because of their likely effects, it is more like error subject to harmless error analysis. The court should determine if the tactics actually resulted in an unreliable confession. 237. This two-step approach bears some resemblance to the Supreme Court’s approach to pretrial identification challenges. The court first asks whether the police orchestrated an identification procedure that was unnecessarily suggestive. See Perry v. New Hampshire, 132 S. Ct. 716, 724 (2012).
363. Once that threshold requirement of “bad police conduct” is established, the court considers the reliability of the identification. Just as a one-person show up is inherently suggestive
364. Stovall v. Denno, 388 U.S. 293, 302 (1967), there are certain police interrogation tactics that are inherently likely to lead suspects to confess falsely and should be deemed to satisfy the threshold requirement. Although my proposed two-step approach has structural similarities to the due process pretrial identification analysis, my proposal with respect to the reliability prong has much more bite than its identification counterpart. See discussion infra Section III.B.2
365. Garrett, supra note 48, at 21, 38 (noting that the false confessions in his study involved prolonged interrogations lasting many hours or even days with 90 percent of them lasting for more than three hours)
366. Drizin & Leo, supra note 180, at 948 (“More than 80% of the false confessors [in our study] were interrogated for more than six hours, and 50% . . . were interrogated for more than twelve hours. . . . [with an] average length of interrogation [of] 16.3 hours . . . .”).
367. Garrett, supra note 48, at 19–36 (noting that, in a study of 250 exonerations, 95 percent of the false confession cases involved police contamination)
368. Richard J. Ofshe & Richard A. Leo, The Decision to Confess Falsely: Rational Choice and Irrational Action, 74 Denv. U. L. Rev. 979, 1119 (1997) (discussing police contamination).
369. Drizin & Leo, supra note 180, at 918
370. Leo, supra note 3, at 230 (“The vast majority of documented false confessions in the post-Miranda era either have been directly caused by or involved promises or threats.”).
371. Kassin et al., supra note 41, at 12 (“[M]inimization tactics are designed to provide the suspect with moral justification and face-saving excuses for having committed the crime in question . . . . [T]his tactic communicates by implication that leniency in punishment is forthcoming upon confession.”)
372. For example, if an interrogator in a homicide case suggests that the killing was probably unintentional or done in justifiable self-defense, he is implicitly communicating to the suspect that he will not be punished as severely for admitting to that form of homicide even though he does not make an explicit promise of a lesser offense or punishment.
373. White, supra note 3, at 183
374. Ofshe & Leo, supra note 240, at 1072–88
375. Miriam S. Gohara, A Lie for a Lie: False Confessions and the Case for Reconsidering the Legality of Deceptive Interrogation Techniques, 33 Fordham Urb. L.J. 791, 827–31 (2006)
376. Kassin et al., supra note 41, at 12–17
377. Leo, supra note 3, at 231–34
378. Saul M. Kassin & Gisli H. Gudjonsson, The Psychology of Confessions: A Review of the Literature and Issues, 5 Psychol. Sci. Pub. Int. 33, 52–53 (2004).
379. White, supra note 3, at 146–47 (noting the difficulties with establishing causation)
380. Lawrence Rosenthal, Against Orthodoxy: Miranda Is Not Prophylactic and the Constitution Is Not Perfect, 10 Chap. L. Rev. 579, 617–18 (2007)
381. arguing that because the police probably use the same interrogation techniques in most interrogations, the fact that these techniques appear in false confession cases “provides no basis to conclude that [they] increase the likelihood that a confession is false”
382. Paul G. Cassell, The Guilty and the “Innocent”: An Examination of Alleged Cases of Wrongful Conviction from False Confessions, 22 Harv. J.L. & Pub. Pol’y 523, 602–03 (1999) (criticizing false confession research).
383. Kassin et al., supra note 41 (detailing the psychological and experimental research that supports empirical studies on false confessions).
384. This is where my proposal differs from Professor White’s proposal that the use of any police tactic that significantly increases the likelihood of an untrustworthy confession should result in suppression of the confession regardless of the particular confession’s trustworthiness.
385. White, supra note 3, at 214
386. White, supra note 212, at 139.
387. Although I would welcome a finding that the use of tactics that significantly increase the chances of false confessions is offensive under the offensive-police-methods form of voluntariness, I doubt that courts will go that far.
388. Cf. Perry v. New Hampshire, 132 S. Ct. 716, 727 (2012) (expressing concern about opening the floodgates to reliability challenges to pretrial identification procedures if the Court were to permit nonpolice orchestrated procedures to be considered under the Due Process Clause).
389. Given the concerns about inferring causality and the criticisms that scholars have raised about inferring too much from these studies, see supra note 246, I worry about courts’ willingness to base suppression entirely on the studies. If the point of this variant of voluntariness is to prevent false confessions, then the use of the tactics is problematic only when it has that effect.
390. Leo, supra note 3, at 234–35
391. Joseph P. Buckley, The Reid Technique of Interviewing and Interrogation, in Investigative Interviewing: Rights, Research and Regulation 190, 204 (Tom Williamson ed., 2006) (“[I]t is imperative that interrogators do not reveal details of the crime so that they can use the disclosure of such information by the suspect as verification of the confession’s authenticity.”).
392. Brandon L. Garrett, Contaminated Confessions Revisited, 101 Va. L. Rev. 395 (2015) (discussing the continuing problem of police contamination).
393. Kassin et al., supra note 41, at 28
394. Drizin & Leo, supra note 180, at 948
395. Kassin et al., supra note 41, at 16
396. Cf. Ashcraft v. Tennessee, 322 U.S. 143, 149 (1944) (noting that the prolonged interrogation involved multiple interrogators replacing one another in shifts precisely because even the interrogators could not hold up indefinitely).
397. Fred E. Inbau et al., Criminal Interrogation and Confessions 597 (4th ed. 2001) (“[R]arely will a competent interrogator require more than approximately four hours to obtain a confession from an offender, even in cases of a very serious nature.”).
398. See sources cited supra notes 241–243
399. See, e.g., White, supra note 3, at 206 (arguing that courts should focus on whether “the interrogator should be aware that either the suspect or a reasonable person in the suspect’s position would perceive that the interrogator’s statements indicated that the suspect would be likely to receive significant leniency if he did confess or significant adverse consequences if he did not”)
400. Kassin et al., supra note 41, at 30 (arguing that courts should prohibit interrogation techniques that minimize the legal consequences of confessing but permit those that minimize the moral or psychological consequences of confessing).
401. A similar taxonomy is necessary to delineate which false evidence ploys are problematic. See State v. Cayward, 552 So. 2d 971, 974 (Fla. Dist. Ct. App. 1989) (holding that police fabrication of “tangible documentation or physical evidence” should be prohibited because “manufactured documents have the potential of indefinite life and the facial appearance of authenticity”)
402. White, supra note 3, at 211–12 (arguing false evidence ploys should be prohibited if they “suggest to the suspect that the evidence against him is so overwhelming that continued resistance is futile”)
403. Gohara, supra note 244, at 825–26 (describing false evidence ploys as a kind of “implied threat” and arguing for their prohibition)
404. Kassin et al., supra note 41, at 29 (arguing that false evidence ploys should be prohibited “to the extent that the alleged evidence . . . is presented as incontrovertible, sufficient as a basis for prosecution, and impossible to overcome”).
405. Morgan Cloud et al., Words Without Meaning: The Constitution, Confessions, and Mentally Retarded Suspects, 69 U. Chi. L. Rev. 495, 511-14 (2002)
406. Drizin & Leo, supra note 180, at 944, 1005
407. Kassin & Gudjonsson, supra note 245, at 51–53
408. Allison D. Redlich, Mental Illness, Police Interrogations, and the Potential for False Confession, 55 Psychiatric Servs. 19, 20 (2004).
409. Leo, supra note 3, at 232–34
410. Inbau et al., supra note 180, at 352 (noting that different procedures will apply for vulnerable populations)
411. Drizin & Leo, supra note 180, at 1004 (describing the many additional steps one Florida county takes when questioning a mentally disabled suspect)
412. Barry C. Feld, Police Interrogation of Juveniles: An Empirical Study of Policy and Practice, 97 J. Crim. L. & Criminology 219, 226–27 (2006) (“About a dozen states require the presence of a parent or other ‘interested adult’ when police interrogate juveniles . . . .”).
413. Leo, supra note 3, at 312–13 (arguing that police should “make a reasonable effort to afford an appropriate adult the opportunity to be present during all questioning”)
414. Kassin et al., supra note 41, at 29 (arguing that police should never be permitted to lie about inculpatory evidence that they have when questioning members of vulnerable subpopulations)
415. White, supra note 212, at 143 (arguing that police should not be permitted to use leading questions).
416. Lego v. Twomey, 404 U.S. 477, 484–87 (1972).
417. Grano, supra note 46, at 921 (arguing for a reliability assessment).
418. But see White, supra note 173, at 2022 (arguing that the Court should focus on the methods used rather than the ultimate reliability of the confession).
419. Lego, 404 U.S. at 484–87
420. A number of jurisdictions have held under state law that the government must demonstrate that a confession is voluntary beyond a reasonable doubt.
421. State v. Spooner, 404 So. 2d 905, 906 (La. 1981)
422. People v. Crespo, No. 1812/10, 2010 WL 3808691, at *3 (N.Y. Sup. Ct. Sept. 22, 2010)
423. State v. Janis, 356 N.W.2d 916, 918 (S.D. 1984).
424. This would require the Supreme Court to modify its holding in Lego, 404 U.S. at 489, but it is a modification that the Court itself recognized as a possibility. When the Lego Court established preponderance of the evidence as the standard, it explicitly stated that “[p]etitioner offers nothing to suggest that admissibility rulings have been unreliable or otherwise wanting in quality because not based on some higher standard.”
425. Empirical studies in the past twenty years revealing the problem of false confessions and the inability of the legal system to ferret out false confessions with the current standards suggest that a higher standard is necessary when police use tactics that we know are significantly likely to increase the chance of a false confession.
426. Michael D. Pepson & John N. Sharifi, Lego v. Twomey: The Improbable Relationship Between an Obscure Supreme Court Decision and Wrongful Convictions, 47 Am. Crim. L. Rev. 1185, 1206–07 (2010) (noting that the Lego Court used provisional language and arguing that it is time to reconsider the standard).
427. Many states already use a heightened burden of proof in voluntariness cases. See cases cited supra note 270
428. Richard A. Leo & Richard J. Ofshe, The Consequences of False Confessions: Deprivations of Liberty and Miscarriages of Justice in the Age of Psychological Interrogation, 88 J. Crim. L. & Criminology 429, 438–39 (1998)
429. Leo & Ofshe, supra note 240, at 991–92
430. Richard A. Leo, False Confessions and the Constitution: Problems, Possibilities, and Solutions, in The Constitution and the Future of Criminal Justice in America 169, 178–80 (John T. Parry & L. Song Richardson eds., 2013).
431. A confession can contain many different types of nonpublic information that might suggest its reliability. It might “include identification of highly unusual elements of the crime that have not been made public” or it might “include an accurate description of the mundane details of the crime scene which are not easily guessed and have not been reported publicly.”
432. Leo & Ofshe, supra note 272, at 438–39
433. Garrett, supra note 48, at 33 (“In at least 75% of these cases (thirty of forty cases), the exoneree supplied facts during the interrogation that were inconsistent with the known facts in the case.”).
434. Richard A. Leo et al., Promoting Accuracy in the Use of Confession Evidence: An Argument for Pretrial Reliability Assessments to Prevent Wrongful Convictions, 85 Temp. L. Rev. 759, 805–06 (2013).
435. Many have advocated for mandatory recording requirements.
436. Garrett, supra note 48, at 43, 248
437. Leo, supra note 3, at 291–305
438. White, supra note 3, 190–96
439. Kassin et al. supra note 41, at 25–26. For a discussion of the movement toward and benefits of recording
440. Leo, supra note 3, at 291–305
441. Garrett, supra note 48, at 43, 248 (noting that eighteen states and hundreds of police departments record interrogations)
442. Thomas P. Sullivan, Arguing for Statewide Uniformity in Recording Custodial Interrogations, Crim. Just., Spring 2014, at 21 (detailing the history of state-by-state requirements to record interrogations).
443. A Kevin, F. O’Malley et al., Federal Jury Practice & Instructions § 14:15 (6th ed. 2008) (“[F]ailure to call that witness may give rise to an inference that this testimony would have been unfavorable to that party.”).
444. In 2010, the Uniform Law Commission promulgated a model statute on electronic recording of interrogations recommending that judges consider the failure to record when making voluntariness determinations.
445. Unif. Elec. Recordation of Custodial Interrogations Act §§ 2–3, 11–12 (2010)
446. Leo et al., supra note 41, at 531 (“[L]aw enforcement officers should have a higher burden when seeking to admit unrecorded statements.”)
447. Andrew E. Taslitz, High Expectations and Some Wounded Hopes: The Policy and Politics of a Uniform Statute on Videotaping Custodial Interrogations, 7 Nw. J.L. & Soc. Pol’y 400 (2012) (discussing the Uniform Electronic Recordation of Custodial Interrogations Act).
448. Professors Leo & Drizin have since argued that police should be required to record interrogations and that, absent some showing of exigency, any resulting confession should be presumed unreliable and automatically excluded.
449. Leo et al. supra note 275, at 799–801
450. Garrett, supra note 3, at 1112 (“Courts should credit ‘inside knowledge’ offered during interrogations only if police have a record of the entire interrogation.”).
451. Garrett, supra note 48, at 42 (“[T]o the extent that facts were disclosed to the suspect, confessions appear uncannily reliable.”)
452. Leo A et al., supra note 41, at 530 (“Without a recording, it is difficult—sometimes impossible—for judges accurately to assess the reliability of confession evidence.”).
453. Leo A et al.supra note 41, at 534 (proposing that prosecutors should have to “demonstrate by clear and convincing evidence that recording was infeasible for reasons that were not the fault of law enforcement”).
454. Although query whether courts should have reliability concerns about admissions of guilt that are unsupported by a description of the underlying offense. 283. The state should have a high bar. As those who train police interrogators have stated, “[t]he truthfulness of a confession should be questioned . . . when the suspect is unable to provide any corroboration beyond the statement, ‘I did it.’ ”
455. Inbau et al. supra note 180, at 350
456. Garrett, supra note 3, at 1111 (“Courts credit evidence of reliability without asking whether that evidence is sound.”).
457. Many states have corpus delicti rules that require independent corroboration that a crime occurred before they will admit a confession into evidence. See generally David A. Moran, In Defense of the Corpus Delicti Rule, 64 Ohio St. L.J. 817 (2003) (describing these rules).
458. Because corpus delicti rules require corroboration only that a crime occurred (not that the defendant committed the crime), the only unreliable confessions these rules screen out are confessions to nonexistent crimes. Cf. id. (arguing that this is an important, albeit small, group of cases).
459. Some jurisdictions have adopted a trustworthiness rule under which the government may not introduce a confession unless it provides substantial independent evidence that would tend to establish the trustworthiness of the confession itself.
460. United States, 348 U.S. 84 (1954)
461. State v. Mauchley, 67 P.3d 477 (Utah 2003).
462. But these have been impotent in practice.
463. Leo A. et al., supra note 41, at 488, 501–11
464. Moran, supra note 285, at 852 (describing the trustworthiness rule as “so malleable that almost any independent evidence of anything can serve to ‘corroborate’ the confession”).
465. Brown v. Allen, 344 U.S. 443, 537 (1953) (Jackson, J., concurring) (“It must prejudice the occasional meritorious application to be buried in a flood of worthless ones. He who must search a haystack for a needle is likely to end up with the attitude that the needle is not worth the search.”)
466. Perry v. New Hampshire, 132 S. Ct. 716, 719 (2012) (rejecting the defendant’s argument that an unnecessarily suggestive identification procedure need not be police orchestrated in order to trigger due process review, in part, because “his position would open the door to judicial preview, under the banner of due process, of most, if not all, eyewitness identifications”).
467. Robert P. Mosteller, The Duke Lacrosse Case, Innocence, and False Identifications: A Fundamental Failure to “Do Justice”, 76 Fordham L. Rev. 1337, 1340 (2007) (noting that due process analysis for eyewitness identifications is “practically worthless in most cases and does not serve as an effective guarantee against prosecuting the innocent”)
468. Weisselberg, supra note 6, at 1599 (recognizing that courts could fail to facilitate the growth of voluntariness doctrine even in a world where Miranda is dead).
469. Medwed, supra note 39
470. Leah A. Walker, Will Video Kill the Trial Courts’ Star?: How “Hot” Records Will Change the Appellate Process, 19 Alb. L.J. Sci. & Tech. 449, 473–74 (2009) (lamenting that appellate courts show less deference to trial courts when there is a videotape).
471. Leo, supra note 3, at 305–07
472. Kassin et al., supra note 41, at 31
473. Garrett, supra note 48, at 248
474. Garrett, supra note 3, at 1116
475. Leo et al., supra note 41, at 531 (arguing that Federal Rule of Evidence 403 or its state counterpart should be interpreted to preclude the admission of unreliable confessions as substantially more prejudicial than probative)
476. Leo, supra note 275, at 817–18 (proposing an exception to hearsay rules that preclude admission of party-opponent statements made to law enforcement during interrogations unless corroborating circumstances clearly indicate their trustworthiness).
477. Daniel Harkins, Revisiting Colorado v. Connelly: The Problem of False Confessions in the Twenty-First Century, 37 S. Ill. U. L.J. 319, 335 (2013) (“[U]tilitizing [Federal Rule of Evidence] 403 has the downside of causing admissions of confessions to be effectively non-reversible on appellate review.”).
478. Leo, supra note 3, at 314–16
479. Garrett, supra note 3, at 1112
480. Thomas & Leo, supra note 74, at 224
481. Garrett, supra note 3, at 1111–12
482. The Supreme Court came close to so holding in two pre-Miranda cases. See Gallegos v. Colorado, 370 U.S. 49, 54–55 (1962) (“He would have no way of knowing what the consequences of his confession were without advice as to his rights—from someone concerned with securing him those rights—and without the aid of more mature judgment as to the steps he should take in the predicament in which he found himself. . . . Without some adult protection against this inequality, a 14-year-old boy would not be able to know, let alone assert, such constitutional rights as he had. To allow this conviction to stand would, in effect, be to treat him as if he had no constitutional rights.”)
483. Haley v. Ohio, 332 U.S. 596, 599–600 (1948) (suppressing a confession and noting that a fifteen-year-old boy “needs counsel and support if he is not to become the victim first of fear, then of panic. He needs someone on whom to lean lest the overpowering presence of the law, as he knows it, crush him. . . . No counsel or friend was called during the critical hours of questioning.”).
484. Feld, supra note 265, at 226–27 (describing state requirements that juveniles have an opportunity to consult with a parent, attorney, or other “interested adult”).